There
is a lot of hue and cry to a controversial the U.S. Court of Appeals for
the 7th Circuit ruling on February 29th,which
says it is now legal for police to search cell phones without a warrant. Due to
that the expanding conflict between constitutional rights and
technological advances has taken another turn. The United States of
America v. Abel Flores-Lopez arises from the original Indiana case
involving Mr. Flores-Lopez, who was arrested for allegedly selling
methamphetamine. Flores-Lopez was reportedly arrested during a sting
operation. Police then searched his phone for numbers. Those numbers were later
linked to a drug dealing ring. He was subsequently convicted and sentenced
to 10 years in prison. Police never had a warrant or his permission to search
the phone. Flores-Lopez appealed, claiming his 4th amendment rights were
violated. The 7th circuit U.S Court of Appeal turned down his request and sided
with the officers.
The court said that the possible invasion of privacy from doing so
was slight enough that it would not violate Fourth Amendment rights against
unreasonable search and seizure. The presiding judge determined that since
police officers can search a diary for information such as addresses and phone
numbers, they also have the right to search cellphones for pertinent
information.
This
"lack of severity" was due to the fact that the search revealed only
the telephone number of the arrestee's seized cellphone. "If police are
entitled to open a pocket diary to copy the owner's address, they should be
entitled to turn on a cell phone to learn its number," Judge Richard
Posner wrote for the three-judge panel. "If allowed to leaf through a
pocket address book, as they are...they should be entitled to read the address
book in a cell phone. If forbidden to peruse love letters recognized as such
found wedged between the pages of the address book, they should be forbidden to
read love letters in the files of a cell phone."
Extrapolating
on this cell phone-equals-diary analogy, the judge further contended that both
were "containers," as "any object capable of holding
another object...an object that can contain anything else, including data,
is a container...And since a container found on the person of someone
who is arrested may be searched as an incident to the arrest even if
the arresting officers don't suspect that the container holds a weapon or
contraband, and thus without any justification specific to that
container...the government urges that a cell phone seized as an incident
to an arrest can likewise be freely searched."
Thus,
the court ruled that a search "incident to the arrest" of someone
does not violate that person's Fourth Amendment rights. Yet the Fourth
Amendment itself states that "The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized."
How has this apparent contradiction been adjudicated? Two
Supreme Court rulings regarding "search-incident" doctrine, based on
the need for officers to quickly determine if containers associated with an
arrestee contain evidence of the offense itself, or anything that might
endanger the safety of police officers and others, have been somewhat
contradictory. In
United States v. Robinson (1973), a
police officer stopped a car based on reliable information that Mr. Robinson's
driver's license had been revoked. After being arrested on that charge,
Robinson was searched and a crumpled cigarette package containing heroine was
found. The Court ruled "in the case of a lawful custodial arrest a
full search of the person is not only an exception to the warrant requirement
of the 4th Amendment, but is also a reasonable search under that
Amendment."
Yet in
Arizona v. Gant (2009), Rodney J. Gant,
was also arrested for driving with a suspended license, but was already walking
away from his vehicle when police detained him. After securing Gant and other
suspects in patrol cars, police searched his vehicle, where they found
narcotics and a weapon. In that case, the Court ruled that police are
not allowed
to search an arrestee's car after the arrestee had been handcuffed and there
was no realistic possibility that he could gain access to any evidence or
weapons in his vehicle.
Flores-Lopez
contended that the latter case was applicable because, when narcotics officers
searched his cellphone, it was safe in police custody, therefore requiring a
warrant to conduct additional searches.
The 7th Circuit Court disallowed the argument, noting that
Gant involved
the search of a vehicle, and further noting that it was reasonable for
investigators to believe that the number of the cellphone in the defendant's
possession could be used as evidence to link him to other conspirators in the
drug-trafficking operation under investigation. With respect to the
evidence-preservation and officer-safety rationales contained in
Robinson,
the Court contended that the "conceivability" that co-conspirators
could initiate a remote wipe of the contents of the defendant's cellphone
(evidence preservation) and the availability of stun guns shaped like cell
phones (officer safety) made a warrantless search "reasonable," even
if the possibility of a remote wipe was not "probable."
The
unresolved issue? Though discussed by the court, it declined to decide what
facts would be required to conduct a warrantless search more extensive than a
search for the cell phone's number. "We need not consider what level of
risk to personal safety or to the preservation of evidence would be
necessary to justify a more extensive search of a cell phone without a warrant,
especially when we factor in the burden on the police of having to traipse
about with Faraday bags or mirror-copying technology and having to be
instructed in the use of these methods for preventing remote wiping or
rendering it ineffectual," wrote Posner–who then cut to the heart of
the issue. "We can certainly imagine justifications for a
more extensive search," he added.
Given
contradictory rulings in this arena, including a California State Supreme
Court ruling allowing law enforcement officers to go through any
content on a suspect's cell phone, and an Ohio State Supreme
Court ruling that such searches violate the Fourth Amendment, it
seems likely that the Supreme Court will have to clarify such justifications.
As
of now, both sides of the issue were framed by their respective proponents in
the law enforcement community. Former Dallas FBI Agent Danny Defenbaugh
defended the ruling, claiming it gives law enforcement officials an advantage
in fighting crime. "I think not only will it help them, but it could be
life saving," he said. Paul Coggins, former U.S. Attorney for the
Northern District of Texas, was far less sanguine. "Does (the ruling)
mean officers now have the right to search through your phone, search through
your search history, your photographs, your e-mails and the rest, because it
could all be wiped clean?" he asked.
And
lest anyone think encrypted cell phone passwords are
the solution, because requiring one to divulge one's password would
violate the Fifth Amendment's protection against self-incrimination, think
again: in January, a Colorado judge ordered a woman to decrypt
her own computer so prosecutors could use the files in it against her in a
criminal case. That case will likely end up in front of the U.S. Supreme Court
as well–which recently ruled 9-0 that affixing a GPS device to a
vehicle for 28 days constitutes a search requiring a warrant. But
even in that case, they left open the question of whether GPS monitoring
for shorter periods of time would require a warrant.
Technology
is rapidly eliminating anything resembling a genuine the right to privacy.
Sadly, in a nation of people enthralled with posting the details of their lives
on Internet websites, or loading substantial portions of those lives into
cellphone and other portable devices, much of that elimination has been
voluntary. Law enforcement officials, more often than not, are more than
willing to exploit that enthusiasm. It behooves the courts to constitutionally
temper that enthusiasm.
The case gave the court an
occasion to examine just how far police can go when it comes to searching
electronic gadgets.
"Lurking behind this issue
is the question whether and when a laptop or desktop computer, tablet, or other
type of computer (whether called a 'computer' or not) can be searched without a
warrant," Judge Richard Posner wrote for the three-judge panel.
He raised the example of the
iCam, which allows someone to use a phone to connect to a home-computer web
camera, enabling someone to search a house interior remotely.
"At the touch of a button,
a cell phone search becomes a house search," he wrote.
Prosecutors argued that in an
age when people can wipe their cell phones clean remotely, officers are under
pressure to obtain data before it is destroyed.
The court acknowledged that the
actual risk that one of the suspects would have been able to destroy the
phone's contents was minimal in this case. But so was the invasion of privacy,
limited to telephone numbers.
The court left the question of
just how far police can go in searching a phone's contents for another day.
Moreover, the remedy
does not represent an over-correction towards privacy since law enforcement
would still have the opportunity to obtain a warrant to search Facebook or any
other social networking site without having to directly seize a suspect’s
phone.
These changes would
be consistent with the widely supported theory that the Bill of Rights,
collectively, was added to the Constitution “to keep the precincts of belief
and expression, of the press, of political and social activities free from
surveillance.”Blanket government surveillance of speech on Facebook not only
presents privacy concerns of a different scale, but it squarely conflicts with
Justice Brandeis’ belief in the “freedom to think as you will and to speak as
you think.” Granted, Justice Brandeis’ statement that “[o]nly an emergency can
justify repression” is consistent with rules allowing post-arrest searches to
ensure officer safety or protect other citizens from imminent danger. But the
cell phone searches sometimes done in the name of “emergency” or “safety,” but
rather, to conduct fishing expeditions for potentially useful evidence. The
marginal benefit of such epic searches is not offset by considerations of the
hazards of “discouraging thought” and stifling “public discussion.”
Thus, the combination
of current criminal procedure doctrine with Facebook’s extensive database and
emerging cloning technology easily provides an arresting officer with a profile
database that rivals those found in once-hyperbolic Orwellian science fiction.
This is a classic
overbreadth problem—except that there is no overbreadth doctrine in Fourth
Amendment jurisprudence.
Without an immediate
correction, the result of the status quo is clear: We must assume that any
speech on the internet will eventually be copied and cataloged by the
government. And in a democracy such as ours, the unwarranted law enforcement
license to “listen in” to every conversation in our 21st century town square
should be seen as a grave threat to democracy and the ideals of
self-governance.
The government’s ease
in justifying the search of an arrestee’s Facebook account and its ability to
maintain a cloned copy of this speech—which not only could date back over a
decade, but also could create an archive of his friends’ speech—create not just
a chilling effect, but perhaps a freezing effect on speech. From exposing
anonymous identities to revealing associational ties, a post-arrest Facebook
search not only deters an arrestee’s core political speech, but the single
search ices the communication and consumption of many persons.
But Facebook, I submit, presents additional concerns that
are unique to the popularity of the social network. Unlike diaries, laptops, blogs,
or even Twitter, its structure means that government access to one person’s
private account essentially constitutes government access to the private
accounts of the user’s friends, which could number in the thousands. Never
before has any technological innovation meant that searching one person’s
gadget was the equivalent to searching over a thousand’s person gadgets. While
a personal diary might reveal personal information about another, it’s unlikely
that any person’s diary is the equivalent of carrying around every friend’s
diary, as well.
Even though Facebook’s policies ban Facebook users from
providing false information or creating an account in another person’s name,
government agencies regularly create them in hopes that suspects (or suspects’
friends) will approve the request and instantly allow them to access private
information, map social networks, and begin the process of luring them into
incriminating revelations. In one section on working undercover on social
networking sites, the document poses but does not answer the question: “[i]f
agents violate terms of service, is that ‘otherwise illegal activity’?” No
caselaw provides a clear answer. However, given the general legality of
undercover operations in which officers violate crimes in order to prevent
crimes, there seems to be no legal barrier to these fake profile tactics and ultimately
diluting the main object of right to self incrimination.
Source:
http://patriotpost.us
